David A. Plymyer: Political, Social & Random Commentary

Holding judges accountable.

It is one thing for judges to refuse to be intimidated by criticism. It is quite another to avoid possible criticism by blocking public scrutiny of judicial performance. That is why the Maryland State Commission on Criminal Sentencing Policy should begin recording the names of judges in the database created from the sentencing guidelines worksheets prepared by judges so the public can find out the rates with which individual judges comply with the state’s sentencing guidelines.

When Court of Appeals Chief Judge Mary Ellen Barbera informed Gov. Larry Hogan the three judges who sit on the Baltimore City Criminal Justice Coordinating Council would not attend the meeting Hogan called to question the suspension of sentences for crimes involving the use or possession of handguns in Baltimore, she explained that under the Maryland Code of Judicial Conduct judges “shall not be swayed by public clamor or fear of criticism.” Fair enough, because it sounded as if the governor’s agenda was to jawbone the judges into reducing the number and length of suspended sentences.

There is nothing in the Code of Judicial Conduct, however, that suggests that judges have the right to thwart criticism by secreting their performance from public view. The database maintained by the MSCCSP contains a wealth of information about criminal sentences but it does not allow members of the public to determine the rates with which individual judges comply with the sentencing guidelines promulgated by the commission. The names of the judicial circuits are captured in the database – but not the names of the individual judges.

The sentencing guidelines are an effort at establishing sentencing best practices, intended to “support fair and proportional sentencing policy (and) increase equity in criminal sentencing practice.” Judges are required to document their reasons for imposing sentences outside of the recommended guideline ranges. The guidelines also are supposed to “promote increased visibility . . . of the sentencing process.” Increased visibility, but not total visibility?

The Code of Judicial Conduct also compels judges to act in a manner that promotes public confidence in the Judiciary. It strikes me that nothing inspires confidence less than an unwillingness to be completely open and transparent about a judge’s performance, including the extent to which he or she complies with sentencing guidelines.

It is human nature to suspect that someone is trying to hide something when information is withheld. Based on about 40 years of experience in government, I have found that such suspicion is not unreasonable when applied to public officials.

Openness, transparency

Making the compliance rates of individual judges available is likely to demonstrate judges are doing their best to impose fair and data-based sentences that protect the public. If, however, the information discloses that one or more judges are deviating significantly from the sentencing guidelines, then that is something that citizens and members of the General Assembly have the right to know. That knowledge would inform decisions about legislation and about the retention or removal of specific judges.

The Judiciary is hardly the only component of the state’s criminal justice system that is reticent to reveal too much information to the public. For example, the Baltimore Police department provides case closure rates but no data on how many of the closed cases result in convictions or guilty pleas. The Baltimore City State’s Attorney’s Office boasts a conviction rate of 93 percent based on cases taken to trial but gives no useful information on the cases that do not go to trial, or on charges that are dropped or reduced for purposes of plea agreements.

For each component of the criminal justice system, the reason for the gap in information is the same: The more information you make available, the more you expose yourself to possible criticism.

The only way to restore the faith of the public in the criminal justice system is for the three components of the system to fully commit to openness and transparency, making as much information available to the public as possible. Judges, prosecutors and police must trust the public to evaluate the information responsibly – that old trust-is-a-two-way-street thing.

Sitting at the top of the system, the Judiciary should initiate the shift in philosophy by making it possible for the public to find out the extent to which individual judges comply with Maryland’s sentencing guidelines. The principle of judicial independence can coexist with the public’s right to information about its government.

[Published as guest commentary by The Daily Record on September 22, 2017 but not posted to my blog until December 24, 2017. The date of posting that appears above was backdated to place all posts in the order in which they were written.]